CAT refuses permission to appeal against rejection of MasterCard collective proceedings

The Competition Appeal Tribunal has dismissed an application for permission to appeal its rejection of an application for a collective proceedings order (CPO) for a £14 billion claim against MasterCard for damages arising out of the European Commission’s 2007 infringement decision on multilateral interchange fees.

On 21 July 2017 the CAT found that the case should not be certified.  It concluded that the class representative had not put forward a reasonable and practicable means for estimating the individual loss which could be used for distribution and that the claims were unsuitable for bringing as collective proceedings.

The CAT ruled that the Consumer Rights Act 2015 did not provide for appeals against decisions of the CAT to grant or reject CPOs and that the Court of Appeal would not have jurisdiction to hear the appeal.  The CAT also ruled that even if the Court of Appeal had jurisdiction, the appeal would not have a reasonable prospect of success.

The CAT considered that although there is a parallel jurisdiction in the ordinary courts for competition law damages claims, only the CAT can hear collective proceedings. The CAT reasoned that the legislature has sought to confine the right of appeal in collective proceedings to decisions on the substantive claims and preclude prolonged litigation in the course of approving the use of collective proceedings.

It will be interesting to see whether the class representative will seek leave directly from the Court of Appeal given the potential ramifications of this judgment.

Case 1266/7/7/16 Walter Hugh Merricks CBE v MasterCard Inc and Others, CAT ruling, 28 September 2017